The Electoral College Should Vote For Clinton?

In a Washington Post op-ed last week, Harvard law professor and Democratic activist Lawrence Lessig maintained: The Constitution lets the electoral college choose the winner. They should choose Clinton. While this article might come across as a far-fetched provocation worthy of Steve Bannon or Breitbart News, presumably the author meant it to be taken seriously as did the Post by publishing it. In fact, liberal groups and their lawyers are engaged in several efforts to persuade electors in States won by Trump to vote instead for Clinton.

Before turning to Lessig’s specific arguments, it is useful to make a few basic points that should be self-evident but perhaps are not.

First, both Clinton and Trump went into the presidential campaign with the clear understanding that (1) the winner would be the candidate who won enough States to amass 270 electoral college votes and (2) the electors’ votes would be faithful to the popular vote results in their respective States. Given these understandings, both candidates’ campaign strategies were built around the single goal of winning an electoral college majority.

Second, these understandings reflect the fundamental rules, rooted in State law and universally accepted (up to now) by partisans on all sides, governing how presidents are elected under our Constitution. The same understandings are shared by the voters, the American public in general, the media, and everyone else. Indeed, Trump was widely and rightly condemned for refusing to say unequivocally before the election that he would accept the outcome flowing from the application of these rules.

Third, Trump won a clear electoral college majority based on these rules. Unlike the 2000 election, there appears to be little justification for challenging the result this year–shocking and unpalatable as it was to many people. The story that the Russians hacked election machinery has been largely debunked, and recounts requested on this basis seem very unlikely to change the result. Obama Administration officials have expressed confidence that the election results “accurately reflect the will of the American people.” (If recounts do somehow shift the electoral college majority to Clinton, she would win under the established rules; however, Lessig’s arguments are not based on this scenario.)

Professor Lessig’s position that Clinton should be the electoral college winner rests on two seemingly inconsistent but equally ludicrous arguments. On the one hand, he points to the fact that Clinton “won” the popular vote and asserts that the electoral college should therefore support her as the “people’s choice.” On the other hand, he argues that electoral college voters in States won by Trump can and should overrule the choice expressed by the people in those States.

Popular vote argument. Clinton’s popular vote lead, which now exceeds two million, may be a reasonable cause for debate over whether the electoral college system is anachronistic and should be changed for future presidential elections (unlikely as that is). However, it has no bearing whatever on the outcome this year since the 2016 election was not about the nationwide popular vote. Clinton’s popular vote advantage is not only legally irrelevant but also essentially meaningless. For one thing, the notion that it makes her the “people’s choice” is dubious given that she failed to win a majority of the presidential votes cast–i.e., more people voted against her than for her nationwide. Another 40 plus percent of the people eligible to vote chose not to vote at all. The more salient point, however, is that neither side campaigned to win the nationwide popular vote. If winning the popular vote had been the goal, their campaign strategies would have been quite different. It’s impossible to know which side would have emerged with the popular vote advantage campaigning under this different set of rules and strategies.

Touting Clinton’s popular vote “win” is analogous to a losing football team claiming victory because, although being outscored, it gained more total yards than its opponent. If the outcome of football games turned on yards gained rather than points scored, both teams’ strategies would be entirely different. There is no reason to assume that the same team would still wind up with more total yards in what would literally be a completely different ball game.

Likewise, a presidential election based on winning the nationwide popular vote rather than the electoral college majority would be a very different ball game. One major difference is that the campaigns would target the most populous States even if they were not competitive from an electoral college viewpoint. Another difference is that minority party voters in deep blue and deep red states would have greater incentive to go to the polls since their presidential vote now would be more likely to matter.

In short, if this year’s election actually had been a contest to win the popular vote would Clinton still have won it? The answer, of course, is there’s no way of knowing. There is certainly no reason to assume that she would have.

Electoral college discretion. Lessig’s other argument is that the framers of the Constitution intended electoral college members to be wise elders who would serve as a “safety valve” on the popular vote and either confirm or reject the people’s choice. According to him, it was originally envisioned that the electors could exercise a veto power much like that of judges who can sometimes overturn jury verdicts they consider to be unjustified. In a less than subtle reference to conspiracy theories about Trump and the Russians, Lessig says, for example, that the electors surely could intervene to block the voters’ choice if that choice was a “Manchurian candidate.” This year, he says, they should exercise their discretion to elect Clinton as the better choice as well as the people’s choice.

Even if Lessig’s assertions have some historical foundation, they are utterly foreign to our contemporary understanding of the electoral college’s role and quite inconsistent with how it actually has functioned for most of our history. Forty-eight of the 50 States plus the District of Columbia award all of their electoral college votes to the winner of the popular vote in their jurisdictions. Moreover, twenty-nine States and the District of Columbia have laws requiring that electors vote for the popular vote winner in their jurisdictions. (Lessig wholly ignores these laws, apparently believing that electing Clinton is a higher calling than abiding by the law.) Even absent an explicit legal requirement, electors have almost always been faithful to their obligation to vote for the popular vote winner in their States. Throughout the history of our country, over 99 percent of electors have complied with this obligation. 

Lessig’s description of the electors also is dead wrong. They clearly are not the elite overseers serving the lofty mission he seems to think was originally envisioned. Rather, they are typically functionaries of the political parties largely unknown to the general public. Surely no American citizen enters the voting booth with the slightest thought that their vote is subject to second-guessing and potential rejection by anonymous electoral college members. That’s why those electoral college members who on very rare occasions go against the popular vote outcome in their States are (appropriately) referred to as “faithless” electors. I have never heard them described as super wise men and women who, after all, know better than the voters and are simply correcting the voters’ mistake.

As a practical matter, I wonder if Lessig paused to consider the utter chaos that surely would result if electoral college voters actually behaved as he suggests and, by acting against the expressed will of the voters in their States as he proposes, reversed the outcome of a presidential election dictated by the established rules. No doubt this would create a crisis for our democracy far more serious than what occurred in the wake of the 2000 election.

Finally on a personal note, I am no fan of Trump. I didn’t vote for him, I was appalled by much of his campaign rhetoric, and I share the widespread concern over his fitness to serve as president (particularly in terms of personal temperament). However, I also value the Constitution, the rule of law, and the democratic process. Reading articles like Lessig’s reminds me of the lengths to which tendentious liberal legal thinkers sometimes go to twist the law and defy common sense in order to justify their preferred policy outcomes. The one silver lining to Trump’s election, in my view, is that it should keep those who embrace Lessig’s style of jurisprudence off the federal courts. While their creative arguments are often thought-provoking and worth considering as advocacy, it is far better to receive them in the form of op-eds from liberal media outlets than as binding legal opinions delivered from the federal bench.